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Jon defends in the state and federal courts in Fairfax, Northern Virginia, and beyond, including courts in Fairfax City, Arlington, Falls Church, Alexandria, Prince William and Loudoun County. Criminal defense is about defending people and upholding civil liberties. Se habla espa±ol. On parle fran§ais.

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CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE, AND DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY OUR LAW FIRM.Va. R. Prof. Cond. 7.1(b).Nothing on this blog and elsewhere in the katzjustice.com website is legal advice. Jon Katz is admitted to practice before the state and federal courts in Virginia, Maryland and Washington, D.C. A competent lawyer should be consulted privately for any legal advice. Here is further disclaimer informatioÂ and the terms of use for this website.

NOTE: CASE RESULTS DISCUSSED IN THIS BLOGÂ DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE, AND DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY OUR LAW FIRM.Va. R. Prof. Cond. 7.1(b).

How many officers disregard race in deciding whether to stop or arrest a suspect? No more than one phone booth's worth, with room for comfort left over?

When police consider race in deciding whether to stop or arrest a suspect, they do not admit it, unless they are comparing the broadcast description of a wanted crime suspect to the person stopped by police.

In 2000, in the majestic United States Supreme Court building -- whose immediate surroundings are entirely shielded from the more rundown cityscape as close as ten blocks away -- all nine justices allowed police to take into consideration the running away from police in determining whether reasonable articulable suspicion of crime exists to permit a temporary Terry stop. Illinois v. Wardlow, 528 U.S. 119 (2000). The four-justice Wardlaw dissent found no reasonable articulable suspicion to stop Wardlaw, mainly because: "In my judgment, Illinois has failed to discharge that burden. I am not persuaded that the mere fact that someone standing on a sidewalk looked in the direction of a passing car before starting to run is sufficient to justify a forcible stop and frisk." Wardlaw, 528 U.S. at 140 (Stevens, J., concurring and dissenting in part).

Praised be dissenting-in-part Justice Stevens for pointing out well-founded innocent reasons to run from the police:

Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer's sudden presence.FN7 For such a person, *133 unprovoked flight is neither “aberrant” nor “abnormal.” FN8 Moreover, these concerns and **681 fears are known to the police officers themselves,FN9 and are validated by law enforcement investigations into their own practices.FN10 Accordingly, the *134 evidence supporting the reasonableness of these beliefs is too pervasive to be dismissed as random or rare, and too persuasive to be disparaged as inconclusive or insufficient. FN11 **682 In *135 any event, just as we do not require “scientific certainty” for our commonsense conclusion that unprovoked flight can sometimes indicate suspicious motives, see ante, at 676, neither do we require scientific certainty to conclude that unprovoked flight can occur for other, innocent reasons.

Wardlow, 528 U.S. at 132.

Flash forward to today, a dozen years later. District of Columbia police troll (I mean patrol) an allegedly high-crime area, within ten miles of my law office:

Shortly after midnight on January 31, 2010, two uniformed Metropolitan Police Department officers on routine patrol in a â€•high crime areaâ€– of northeast Washington pulled their marked vehicle alongside three young [African-American?] men who were walking in the neighborhood. Officer Matthew Jones explained to the [African-American?] men that they were â€•not in any trouble,â€– but that the officers would like to â€•talk to [them] for a minuteâ€– about some recent robberies in the area. The officers then asked the [African-America?] men if they would agree to a pat-down for weapons. Two of the men replied that they had no objections, and Officer Sean Kenney began to frisk them.

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The third man, Javon Henson, agreed to be frisked, but then came to his senses and declined a frisk. He ran away rather than walking away. In affirming the legality of the stop and frisk of Henson, D.C.'s Court of Appeals -- relying on Wardlow, supra -- seemed to rely mainly on the high-crime area, the nighttime, and Henson's running away for justifying the stop and frisk. Henson v. U.S.._ A.2d _ (D.C., Nov. 15, 2012).

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Concurring Judge Anna Blackburne-Rigsby points out how much closer a call it was for her than for the two-judge majority to agree that the stop and frisk of Henson was lawful:

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Had appellant simply walked away when the officers first approached him, without demonstrating other suspicious conduct, that scenario might compel reversal.

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Accordingly, I would simply stress that the totality of these factors, and not merely the evidence of flight in a high crime area, form the basis of our affirmance of the trial courtâ€˜s finding that when the officers seized appellant, they had reasonable, articulable suspicion that appellant was unlawfully armed.

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Henson (Blackburne-Rigsby, J., concurring).

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Thanks to local law professors Andrew Guthrie Ferguson and Damien Bernache (and to Judge Blackburne-Rigsby for referencing their article, in Henson) for proposing that prosecutors be required to present "objective and verifiable data on crime rates in particular areas" to justify a claim of a "high crime area" being part of the justification for stopping, frisking or arresting a suspect. "The 'High-Crime Area' Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis" American U. L. Rev., Vol 57, pp. 1587-1644 (2008).

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Is this the type of society we want? Where police repeatedly target suspects for their race? Where police try to draw a foul to see whether suspects will run away from them, in order to try justifying stopping and frisking them? Imagine if your children or other close relatives or friends were the victims of such police behavior? This scenario can change, but only when we join together effectively to put a stop to it.

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